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Wednesday, January 11, 2006

Alito's Discussion of Immigration

Thus far, Judge Alito's testimony has not touched on immigration in any significant manner. But here is one exchange between Senator Coburn that addresses the issue of immigrants who appear before Judge Alito:

COBURN: ... During Judge Roberts' hearing, Senator Feinstein tried to get him to talk and speak out of his heart, and I thought it was a great question, so that American people can see your heart. This booklet's designed to protect the weak, to give equality to those who might not be able to do it themselves, to protect the frail, to make sure that there is equal justice under the law. You know, I think at times during these hearings you have been unfairly criticized or characterized as that you don't care about the less fortunate, you don't care about the little guy, you don't care about the weak or the innocent. Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what's important to you in life?

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.

ALITO: I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up. And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame. But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives. And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position. And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result. But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

Later in the day, there also was an exchange between Senator Kohl and Judge Alito on Alito's immigration decisions:

KOHL: Last question: When we met privately, I asked you what sort of Supreme Court justice you would make, and your answer was fair when you said, "If you want to know what sort of justice I would make, look at the sort of a judge that I have been."... In immigration cases, The Post also found that you sided with immigrants who were trying to win asylum or block deportation only in one out of eight cases analyzed. This was much less than most judges in a national sample.

ALITO: ...On the immigration cases, I take very seriously -- and I don't know what the statistics are in this area, but I can tell you this: that I take very seriously the scope of review that I'm supposed to perform as an appellate judge. And that is usually dictated by Congress. In the area of immigration, Congress has spoken clearly. And as to factual decisions that are made by an immigration judge, what Congress has told us is, "You are not to disturb those unless no reasonable fact finder could have reached the conclusion that the immigration judge did." And I very often see a record where I think it's doubtful, I say to myself, "I might have decided this differently, if I were the immigration judge." But I wasn't there. I didn't see the witnesses testify personally. And Congress has told me what my role is there. My role is not to substitute my judgment for that of the immigration judge. My job is to say, "Could a reasonable person have reached the conclusion that the immigration judge did?" And if I find that a reasonable person could have reached that conclusion, then it's my job to deny the petition for review. And that's what I do in those instances.

KOHL: I appreciate that. I would just comment, again, that your siding with immigrants who are trying to win asylum or block deportation -- you sided only in one out of eight cases that they analyzed.

KOHL: And this was much less than most judges in the national sample who were about evenly divided in their decisions on these issues. This was what their analysis indicated. So, for whatever it's worth, you were one out of eight, and a national sample of judges was about 50 percent. I only bring that up for your comment.

Of course, as I discussed here, the statistics for federal appellate reversals of immigration decisions is less than a 10 percent reversal rate, not 50 percent as suggested by Senator Kohl. Judge Alito's reversal record is 3 out of 17 cases, or 18 percent, far above the norm.